Dunn v Khan

[*1] Dunn v Khan 2008 NY Slip Op 50797(U) [19 Misc 3d 1121(A)] Decided on April 1, 2008 Supreme Court, Nassau County Murphy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2008
Supreme Court, Nassau County

Mitchell Dunn, as Administrator of the Estate of Pauline Dunn, Deceased, Plaintiff(s),

against

Aijaz Khan, M.D., Cesar Dumayas Florita, M.D., Ethel Cwibeker, PSY.D., and South Nassau Communities Hospital, Defendant(s).



6494/05



Attorney for Plaintiff

Sullivan Papain Block McGrath

Christopher McGrath, Esq.

55 Mineola Blvd.

Mineola, NY 11501

Furey, Furey, Leverage, Manzione, Williamson & Darlington, P.C.

Attorneys for Deft., Aijaz Khan, M.D.

600 Front St.

Hempstead, NY 11550

Bartlett, McDonough, Bastone & Monaghan, LLP

Attys for Defts. South Nassau Com. Hosp and Cesar Dumayas Florita, M.D.

300 Old Country Rd.

Mineola, NY 11501

Weisman Law Group, P.C.

Atty for Deft. Cwibeker

140 Spruce St.

Cedarhurst, NY 11516

Karen Veronica Murphy, J.

Plaintiff moves for an order pursuant to CPLR § 2221(d)(2) for leave to reargue Defendant's motion seeking the imposition of sanctions, in the form of costs and attorney's fees, against Plaintiff and/or his attorneys.

By Order dated February 8, 2008, this Court granted Defendant's motion on the grounds that while commenced in good faith, the action was continued against Dr. Cwibeker long after the record established that it was clear that there was no basis to hold the Defendant Cwibeker at fault. Pursuant to Fritze v. Versailles, 158 AD2d 669, 551 NYS2d 854 (2d Dept., 1990) the Court found that the continuation of the action was frivolous, and

thus ordered a hearing to determine whether the sanction should be imposed against Plaintiff, his attorney or both.

Oral argument on the motion to reargue was granted and adjourned from the return date, March 25, 2008 to March 28, 2008, due to a death in the family of Dr. Cwibeker's attorney. Regrettably, counsel suffered a second death in her family and Leon Behar and Deborah Kaminetzky appeared on behalf of counsel, Rachel Weisman to orally argue the motion.

Upon this timely motion pursuant to CPLR § 2221(d)(2), the Court grants reargument. Upon reargument, the Court finds that Plaintiff's continuation of the litigation does not rise "to the level of high moral culpability, which must be reached in order to support a claim for costs and/or sanctions" (Velasquez v. Long Island Power Authority, 16 Misc 3d 1138(A), 851 NYS2d 61 [Sup.Ct., Nassau Co., 2007]). Defendant failed to establish that Plaintiff acted in bad faith. (McGill v. Parker, 179 AD2d 98, 582 NYS2d 91 (2d Dept., 1992); Broich v. Nabisco, Inc., 2 AD3d 474, 768 NYS2d 489 [2d Dept., 2003]).

This Court relied heavily upon the Appellate Division decision in the Fritze case in finding that the continuation of a medical malpractice action after the record established that there was no basis to hold the defendant at fault for any part of Plaintiff's cause of action was frivolous. A review of Justice Nahman's decision, however revealed a sharply different factual pattern and thus, the facts in Fritze are distinguishable from the instant case. (Fritze v. Versailles, [Nahman, J., Sup.Ct., [*2]Queens Co., 7/7/88]). In Fritze, the trial Court found ab initio there was no cause of action against the Defendant. Further, the Defendant doctor made repeated requests for discontinuance, which were denied by counsel for Plaintiff Fritze. The Court therein found that there was not a scintilla of evidence to establish the Defendant's involvement in the questioned medical procedure. No depositions of the Defendant doctor were requested or held, and yet the case was still pending a year after discovery on the matter had been completed. Such was not the case herein, thus the law dictates, under this fact pattern, that Plaintiff's continuation of the action was not sanctionable.

Herein, Defendant did not request that Plaintiff discontinue this action voluntarily until she brought the motion for summary judgment. A factor to be considered in evaluating whether Plaintiff acted in good faith, is whether Plaintiff opposed the motion for summary judgment. (See, Pantene v. Griffin, 164 AD2d 192, 562 NYS2d 1005 [3d Dept., 1990]). The Plaintiff did not oppose the Defendant Cwibeker's motion for summary judgment, thus that factor, while not determinative, does weigh in Plaintiff's favor.

It is noted that earlier in the proceedings, Defendant moved to discontinue the action based on a lack of personal jurisdiction, without reference to the merits of the Plaintiff's claims, which motion was denied. In another case decided in Nassau County, sanctions were imposed where Plaintiff refused to discontinue three out of four causes of action. Such refusal, upon learning that those causes of action were not viable, was found to be in bad faith, despite the fact that there was no dismissal of the remaining cause of action. (Mantis v. United Cerebral Palsy of Nassau County, 173 Misc 2d 778, 662 NYS2d 698 [Sup. Ct., Nassau Co., 1997]).

While Plaintiff failed to affirmatively seek Court approval to discontinue this action against Defendant Cwibeker, such advocacy does not give rise to a finding of bad faith and thus is not frivolous per se. (See, Mitchell v. Herald Co., 137 AD2d 213, 529 NYS2d 602 (4th Dept., 1988) app. dism. 72 NY2d 952, 529 NE2d 427, 533 NYS2d 59 [1988]). Nor can it be said that Plaintiff's claims are "completely without merit in law" (Yan v. Klein, 35 AD3d 729, 826 NYS2d 669 [2d Dept., 2006]). Furthermore, this is not a case where Plaintiff persisted in advancing these claims, despite numerous warnings that doing so was frivolous. (Id; See also Heilbut v. Heilbut, 18 AD3d 1, 792 NYS2d 419 [1st Dept., 2005]). This is not the kind of extreme behavior that Courts have traditionally found to merit sanctions (Sakow v. Columbia Bagel, Inc., 32 AD3d 689, 822 NYS2d 5 [1st Dept., 2006]).

Upon reargument, the Court denies Defendant's motion for sanctions, based on the law cited herein. The hearing scheduled for April 2, 2008 is hereby cancelled in light of this decision.

The foregoing constitutes the Order of this Court.

Dated: April 1, 2008

Mineola, NY__________________________________

J. S. C.